Undisclosed Trial-Preparation Witness Details Are Not Brady Material When Obtainable Through Defense Diligence; Strict Preservation Required for Expert-Impeachment Claims

Commentary on State v. Williams, 2025 ND 46 (N.D. Mar. 20, 2025)

Introduction

In State v. Williams, the North Dakota Supreme Court affirmed a murder conviction and a conviction for unlawful possession of a firearm, addressing three recurring criminal-procedure flashpoints: Brady disclosure obligations regarding newly elicited trial-preparation details from an already-disclosed witness; preservation requirements for appellate review of undisclosed impeachment material involving a government expert; and the permissible scope of prosecutorial closing argument about DNA evidence when laboratory results yield unanalyzable minor DNA mixtures.

The defendant, Benjamin Isaiah Williams, was tried for the October 2022 shooting death of Christopher Sebastian in Bismarck. A jury convicted him after a six-day trial in April 2024, and the district court imposed life without parole on the murder count and a concurrent five-year term on the firearm count. On appeal, Williams challenged (1) the denial of his motion to exclude “new” testimony from a State witness that the State learned in trial preparation but did not disclose; (2) the State’s nondisclosure of employment discipline and termination records of the State’s forensic examiner, Dr. Barrie Miller; and (3) alleged prosecutorial misconduct in closing argument about DNA evidence.

The court’s holdings sharpen the contours of three principles: (i) Brady’s due-diligence prong controls when new information arises from re-interviewing a disclosed witness; (ii) appellate review of undisclosed impeachment material requires preservation—or an argued obvious-error pathway; and (iii) prosecutors may make fair comment on circumstantial evidence and the limits of DNA testing without committing misconduct. The opinion, authored by Justice Crothers, provides practical guidance for trial lawyers on both sides of the aisle and underscores the procedural rigor North Dakota requires on appeal.

Summary of the Opinion

The Supreme Court of North Dakota affirmed the convictions and judgments:

• Brady/disclosure of new witness information: No Brady violation. The undisclosed detail—a bystander’s observation during the shooting that a gunshot “blew out” car glass—was learned during the State’s trial preparation of a previously identified witness. Because the defense knew the witness’s identity and could have obtained the same information with reasonable diligence (e.g., by interviewing the witness), Brady’s second prong was not satisfied. The district court’s denial of the defense motion to exclude that testimony was affirmed.
• Undisclosed personnel issues of the State’s forensic examiner: Not reviewable. Although the defense post-trial sought sanctions for nondisclosure of Dr. Miller’s performance plan and termination, on appeal Williams pivoted to assert Brady and Rule 16 violations and entitlement to a new trial. Because those issues were not raised and ruled upon below and the appellant did not argue obvious error, the court declined to reach the merits.
• Prosecutorial misconduct (closing argument on DNA): No misconduct. The prosecutor did not misstate DNA evidence or improperly argue that Williams’s DNA was on the gun. Rather, the State acknowledged the DNA limitations (minor contributors were unanalyzable) and advanced a circumstantial theory tying Williams to the gun and shooting. These were fair comments on the evidence, not due-process violations.

Factual and Procedural Background

In October 2022, officers responding to a shooting discovered the victim, Christopher Sebastian, fatally shot in the driver’s seat of a car. Investigators recovered a .40-caliber pistol, corresponding cartridges, magazines, and clothing items. Williams was charged on October 13, 2022, with murder and unlawful possession of a firearm.

Trial began April 1, 2024. A key non-expert witness had been interviewed in October 2022; his original statement did not say he saw the shooting. In trial preparation, the State re-interviewed him and elicited—through questions not asked before—that he saw a shot blow out glass from the victim’s car. The State did not disclose this new detail before trial but previewed it in opening statement. Defense moved to exclude the “new” testimony as undisclosed Brady material. The district court denied exclusion but offered to reschedule the witness to give the defense time to prepare; the defense declined the accommodation.

The State’s forensic pathologist, Dr. Barrie Miller, conducted the autopsy and testified. Unrelated to this case’s specific evidence, Dr. Miller had been placed on a performance improvement plan on February 13, 2024, and was terminated on April 10, 2024 (during the trial). The State did not disclose these employment issues in this case. Post-trial, the defense sought sanctions; the district court denied sanctions. On appeal, the defense reframed the issue as a Brady/Rule 16 violation warranting a new trial.

In closing, the State argued that: (1) Williams previously possessed the gun; (2) he was not a contributor to a major DNA profile on the gun; (3) minor DNA mixtures were too small or complex for analysis and attribution; and (4) the victim’s DNA was on the gun and, given the multiple headshots, the victim did not shoot himself. Defense asserted these statements were improper and prejudicial.

Detailed Analysis

Precedents and Authorities Cited

• Brady v. Maryland, 373 U.S. 83 (1963). Establishes that suppression of evidence favorable to the accused violates due process where the evidence is material to guilt or punishment. “Favorable” includes exculpatory and impeachment evidence.
• Strickler v. Greene, 527 U.S. 263 (1999). Clarifies that impeachment evidence falls within Brady and outlines materiality and suppression concepts, often invoked for the principle that Brady covers impeachment evidence.
• State v. Muhle, 2007 ND 132, 737 N.W.2d 647. Central North Dakota case holding that where a defendant knew a witness’s identity and had the opportunity to interview or cross-examine the witness, the late-emerging inconsistencies did not amount to a Brady violation; cross-examination could address inconsistencies.
• State v. Kolstad, 2020 ND 97, 942 N.W.2d 865. Reaffirms the Brady framework in North Dakota practice.
• State v. Pederson, 2024 ND 79, 6 N.W.3d 619. Illustrates that a Brady claim fails if the defendant cannot satisfy any one of the four Brady prongs; there, the claim failed on prong one. Williams fails on prong two.
• State v. Chatman, 2015 ND 296, 872 N.W.2d 595, and State v. Thomas, 2020 ND 30, 938 N.W.2d 897. These cases are cited for the preservation rule and the necessity of arguing “obvious error” when an issue was not raised below; absent that, the Supreme Court will not reach the merits.
• State v. Pena Garcia, 2012 ND 11, 812 N.W.2d 328; State v. Lyman, 2022 ND 160, 978 N.W.2d 734. These decisions set the de novo standard of review for whether conduct rises to a constitutional violation in prosecutorial-misconduct claims and articulate the two-step inquiry: misconduct, then prejudice. Lyman also reiterates that curative instructions presumptively remedy improper statements.
• N.D.R.Crim.P. 16. Although not substantively decided here on appeal, it frames discovery obligations and was the basis for the defense’s post-trial sanctions motion.

Legal Reasoning

1) Brady challenge to the State’s failure to disclose new trial-preparation details from a known witness

The court organizes the Brady analysis around the well-settled four-prong test: (1) the State possessed favorable evidence; (2) the defendant did not possess it and could not have obtained it with reasonable diligence; (3) the State suppressed the evidence; and (4) materiality—a reasonable probability of a different outcome had the evidence been disclosed.

Although the district court acknowledged the information might have impeachment value (favoring the defense under Brady and Strickler), both the district court and the Supreme Court found prong two dispositive. The witness was identified long before trial; the defense had notice and the opportunity to interview him. The “new” information did not exist in a separate State-held file or confidential source; it was elicited by asking additional questions of the same known witness. Because the defense could have obtained the same information by reasonable diligence (investigation/interview), Brady’s non-possession/due-diligence prong was not met.

In reaching that conclusion, the court relied on Muhle, where inconsistent witness statements emerging shortly before trial did not prompt a Brady remedy because the defense knew the witness and could cross-examine and investigate. The Williams court emphasized that budgetary constraints do not excuse the duty of diligence. Importantly, the trial court also offered a practical cure—postponing the witness to allow defense preparation—which the defense declined. That offered accommodation further undercut any claim of unfair surprise and highlighted the trial court’s management discretion to ameliorate late-revealed details without invoking Brady’s constitutional remedy.

Bottom line: If the defense could have uncovered the information by reasonable diligence, the State’s nondisclosure of details learned during trial prep does not amount to Brady suppression.

2) Nondisclosure of the forensic examiner’s employment discipline/termination

The defense, post-trial, sought sanctions based on nondisclosure of Dr. Miller’s performance improvement plan (issued February 13, 2024) and termination (April 10, 2024). In the district court, however, the defense explicitly did not seek a finding of a Brady or Rule 16 violation. On appeal, Williams pivoted to assert Brady and Rule 16 violations and to seek a new trial.

The Supreme Court declined to reach the merits for two independent reasons: (a) the issue was not preserved—no ruling was sought or obtained below on whether Brady/Rule 16 was violated; and (b) the appellant did not argue “obvious error,” the doctrinal gateway for unpreserved issues. Citing Chatman and Thomas, the court refused to consider the undisclosed-personnel-file claim. This portion of the opinion is a clear reaffirmation of North Dakota’s strict preservation and briefing requirements on appeal.

3) Prosecutorial misconduct claim tied to closing argument about DNA

Applying de novo review to whether the prosecutor’s comments rose to a constitutional violation, the court first asked whether the remarks were misconduct at all. The remarks: (i) Williams had previously possessed the gun; (ii) he was not a major DNA contributor to the gun; (iii) minor DNA mixtures were too limited/complex to attribute; and (iv) the victim did not kill himself given multiple head wounds. The court found these to be accurate characterizations of the evidence and permissible inferences. The State did not assert that Williams’s DNA was identified on the gun; it conceded the limits of the DNA analysis on minor contributors. Presenting a circumstantial theory consistent with those limits was proper argument, not misconduct.

Because the court found no misconduct, it did not reach prejudice or the effect of any curative instruction. This tracks Lyman’s framework: without misconduct, there is no need to assess prejudice.

Impact and Practical Implications

A. Brady and trial-preparation disclosures: diligence front-and-center

Williams reinforces that Brady is not a catch-all for every late-emerging or undisclosed detail. Where the State’s “new” information comes from re-questioning a known witness, the defense cannot satisfy Brady’s due-diligence prong if it could have discovered the information through its own reasonable efforts. The decision therefore:

• Encourages defense counsel to interview disclosed witnesses (or document reasonable efforts to do so) and to move for targeted continuances when new details surface, rather than rely on Brady exclusion.
• Signals that budget constraints will not excuse a lack of diligence; courts will expect reasonable investigative steps or a developed record showing why they were impracticable.
• Affirms trial courts’ case-management tools—such as rescheduling a witness to mitigate surprise—as appropriate, lesser remedies short of exclusion or mistrial when new details arise close to trial.

B. Preservation of expert-impeachment issues

The court’s refusal to consider the forensic examiner’s personnel-file nondisclosure underscores two practice lessons:

• Preservation matters. If counsel wants appellate review of an alleged Brady or Rule 16 violation, counsel must ask the trial court for that ruling and for the substantive remedy sought (e.g., exclusion, mistrial, new trial). Seeking “sanctions” in a general sense without obtaining a merits ruling will not preserve the underlying constitutional/discovery claims.
• If an issue was not raised below, an appellant must affirmatively brief “obvious error” to invoke the appellate court’s discretionary review of forfeited claims. Absent such briefing, the Supreme Court will not reach the merits—even on weighty issues like alleged Brady violations involving a key expert.

For prosecutors, the case is a reminder that expert personnel issues can constitute impeachment material in many contexts. Even though the court did not decide that question here, prudent practice is to evaluate and, where appropriate, timely disclose impeachment information consistent with Rule 16 and Brady to avoid post-trial challenges.

C. Closing arguments and DNA limitations

Williams confirms that prosecutors may:

• Accurately describe laboratory testimony, including acknowledging that minor DNA mixtures cannot be reliably attributed to any individual; and
• Urge inferences from circumstantial evidence to connect a defendant to a weapon or the crime, even in the absence of direct DNA attribution.

What remains impermissible is suggestion or insinuation that unanalyzable or unknown DNA contributors are the defendant without evidentiary support. The State avoided that line here, and the court approved the argument as “fair and reasonable comment.”

Complex Concepts Simplified

• Brady material: Evidence favorable to the accused (exculpatory or impeaching) that is material to guilt or punishment. “Material” means there is a reasonable probability the result would have been different had it been disclosed.
• Brady’s four prongs: (1) State possessed favorable evidence; (2) defendant did not possess and could not obtain it with reasonable diligence; (3) State suppressed it; and (4) it was material. Failure on any one prong defeats the claim.
• Reasonable diligence (Brady prong two): The defense must show it could not have obtained the evidence through reasonable efforts (e.g., interviewing disclosed witnesses). If defense could discover it, there is no “suppression” under Brady.
• Impeachment evidence: Information used to challenge a witness’s credibility or bias (e.g., inconsistent statements, disciplinary records). It is covered by Brady if material.
• Preservation and “obvious error”: To obtain appellate review, a party must raise an issue and secure a ruling in the trial court. If not preserved, the appellant must argue “obvious error”—a clear, substantial error that affects substantial rights and the fairness of proceedings—for the Supreme Court to consider it.
• Prosecutorial misconduct in closing: Improper arguments (e.g., misstating evidence, appealing to passion) can deny due process. Courts first ask whether statements were improper; only then do they assess prejudice. Curative instructions usually dispel any prejudice because juries are presumed to follow them.
• DNA “major” versus “minor” contributors: In a mixed DNA sample, a “major” profile is predominant and more readily attributable; “minor” profiles may be too low-level or complex for reliable analysis, precluding identification of contributors.

Key Takeaways and Significance

• New details elicited from re-interviewing a disclosed witness during trial preparation are not Brady material if the defense could have obtained them with reasonable diligence. This keeps Brady aligned with its constitutional purpose and avoids transforming it into a general trial-preparation disclosure rule.
• Trial courts may manage late-emerging witness details through scheduling accommodations rather than exclusion or mistrial, especially where defense diligence could have uncovered the information.
• Appellate review of undisclosed expert-impeachment material requires preservation or an argued obvious-error route. Williams reinforces North Dakota’s disciplined approach to appellate issue preservation.
• Prosecutors may fairly argue the implications of DNA limitations and rely on circumstantial evidence without committing misconduct, so long as they do not misstate the evidence or imply facts not in the record.

Conclusion

State v. Williams clarifies that Brady’s due-diligence prong can be dispositive where “new” information arises from the State’s trial preparation with an already-identified witness; the defense’s ability to discover the same information defeats a suppression claim, even if the State did not affirmatively disclose the new detail. The decision also reaffirms strict preservation requirements for appellate review of undisclosed impeachment evidence—particularly expert personnel records—and confirms that fair, evidence-based commentary on DNA limitations in closing argument does not amount to prosecutorial misconduct.

As a practical matter, Williams counsels defense attorneys to actively interview disclosed witnesses and to create a record of diligent efforts; to seek timely, specific remedies at trial; and to preserve discovery and Brady issues for appeal or brief obvious error when necessary. For prosecutors, it underscores the prudence of disclosing impeachment material and accurately framing the limits of forensic results in argument. The opinion’s emphasis on diligence, preservation, and fair comment will likely shape discovery practices, trial management, and appellate briefing in North Dakota criminal cases going forward.

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Court: Supreme Court of North Dakota. Opinion by Justice Crothers, with Chief Justice Jensen, Justices McEvers and Tufte, and Senior Justice Hagerty (sitting in place of Justice Bahr, disqualified) concurring. Decided March 20, 2025. Citation: 2025 ND 46.